Yesterday, the Supreme Court of the United States heard its first arguments in a case that has the potential to overturn the 2003 Grutter decision. That case upheld the legality of affirmative action in education, provided it not be part of a rigid quota system and instead holistically look at the social and academic benefits of a diverse student body. Much of the (inadequate) reporting on the case has focused on the demographics of colleges and universities in Texas (like the one currently being sued), but with minimal or no evaluation of how the demographics of the Supreme Court might impact decisions. Considering the national freak-out over the sudden lack of Protestant justices compared to the current silence over six White justices evaluating the usefulness of affirmative action, there’s something to be said about what identities are valued on the court. It’s worth noting as well, it would be seven White justices considering this case if not for Elena Kagan recusing herself on grounds of working on the case before her appointment. While the absence of Protestants is noticed and criticized, the disproportionately low representation of female justices and justices of color is treated as an irrelevancy, even on a case that clearly and profoundly changes their relationship with the larger society.
Reviewing Grutter is actually quite instructive here. The case, like many in the past decade, was decided by a narrow 5-4 margin, with justices O’Connor, Stevens, Souter, Ginsburg, and Breyer forming the majority opinion. All of the female justices agreed that a holistic evaluation of a student applicant may include components of their identity, most obviously race, but often also their sex and gender – noting that those traits significantly shape an individual’s interaction with the larger world. In short, excluding those factors would produce at best a partial view of the candidate. It’s also worth noting that both of the Jewish justices (Ginsburg and Breyer) sided with the decision which held up a flexible, rather than quota-based affirmative action system. That seems rather straightforward as within living memory at the time, Jewish students had faced restrictive quotas at a variety of institutions. Before I get ahead of myself, it’s undeniable that the identities of Supreme Court justices by no means determine their votes even on issues overtly related to race, gender, or sex. Justices John Stevens and David Souter upheld affirmative action, although neither were Jewish, female, or people of color. Likewise, justice Clarence Thomas filed the most vehement dissent (along with Antonin Scalia), although he is Black.
Still, it seems worth noting that the backbone of support for affirmative action in Grutter derived from justices belonging to marginalized social groups – whether as a result of their sex, gender, or ethnic background. From that perspective, they perhaps more easily saw the need for promotion of diversity and an evaluation of candidates’ entire life experience. A similar dynamic seems to be unfolding in the case currently before the court, as opinions seem to largely break down along sexual and ethnic lines. The only Latin@ justice to ever serve on the court (Sotomayor) and the three current Jewish justices (or in Kagan’s case, her successor) form the block against overturning Grutter and the four White and non-Jewish men sitting on the court seem to be in favor of striking down affirmative action. The deciding vote falls into justice Thomas’s lap, and he’s made his comparatively unusual opinions on this already known.
Of course, it’s worth noting that if the court actually reflected the American public in terms of gender and race, there would be one fewer White, non-Jewish man on the court. As the 2010 Census reported, 63.7 percent of the US population is made up of “non-Hispanic Whites”, of which 49 percent are male. That works out to about 31% of the US population being “non-Hispanic” White men, meaning that having a third of the court be comprised of them would be the closest representation of the larger population. Working with only three votes from that demographic which is uniquely opposed to these policies, the likelihood of passing this sort of a law would much lower, as it’s dependent on two not just one of the justices from other demographic groups having atypical opinions on the issue.
Of course, applying those standards to the court should be done across the board – meaning that while a proportionately represented court would also have one seat filled by a Black American (which it does), at least one seat filled by a Latin@ American (which it does), and one seat filled by an American of either Asian, Pacific Islander, Native American or “other” ethnic background (which it doesn’t). As all of those instances of representation are for one seat, it’s difficult to speak to the need for intersectional representation – of Latinas, Asian women, Black women, or other women of color of which Sonia Sotomayor is not only the only current example, but the only example in the United States’ entire history. Likewise, if we viewed Jewish justices as ethnically distinct from White justices (rather than as a religious group), they would most easily be included as represented by the additional seat for Asians, Pacific Islanders, Native Americans, and “others”.
Additionally significant would be the change in the sexual composition of the Supreme Court. If we treat Judaism as a religious rather than ethnic category, Ginsburg and Kagan could easily retain their positions as two of the three White women and be joined by another to make three. In effect, a representative Supreme Court would include more women, more people of color, and ideally many justices who belonged to both groups. In such a court, if demographic voting norms on the issue of affirmative action remained in place – majorities of the female justices and justices of color would favor retaining the policies. Such a court would make the 5-4 Grutter decision typical, rather than an unusual case where adequate numbers of White men were convinced of the merit of the program (in Breyer’s instance, perhaps from memories of antisemitic bias that had affected his family) to counteract the demographic misrepresentation on the court.
Instead, the current court has, if we’re probably overly generous to it and count Stephen Breyer as one of the “other” races but Elena Kagan and Ruth Ginsburg as White women, still one more White guy than it would if it were representative. And that’s likely to be the vote that will overturn Grutter.
(The current US Supreme Court – from right to left, justices Thomas, Sotomayor, Scalia, Souter, Roberts, Alito, Kennedy, Kagan, and Ginsburg. Originally from here.)
As we’re only in the second day of arguments, all of this is so far only speculation though. Justice Kennedy (one of the five White and male justices on the court) has shown a capacity to vote against expectations in the past, and may surprise us yet, but if he votes according to demographic lines (which seems likely at this point and would reflect his decision on Grutter), he will vote as a part of a historically and currently over-represented demographic on the court.